Curu v State [2023] FJHC 607; HAM139.2023 (11 August 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL CASE NO. HAM 139 OF 2023

BETWEEN :

MATAIASI CURU
APPLICANT

A N D :

THE STATE
RESPONDENT

Counsel : Mr. F. Daveta for the Applicant.
: Mr. T. Tuenuku for the Respondent.

Date of Hearing : 10 August, 2023
Date of Ruling : 11 August, 2023

RULING
[Application for bail pending trial due to change in circumstances]

1. This is an application for bail pending trial due to change in circumstances. The applicant through his counsel makes this application by filing a Notice of Motion supported by his own affidavit sworn on 23^rd May, 2023 and his supplementary affidavit sworn on 21^st July, 2023. In addition to the above the applicant has filed proposed sureties affidavits from Jekesoni Qica Koroi and Salaseini Donu Koroi sworn on 13^th June, 2023 respectively.
2. The application filed by the applicant is opposed by the state. The state in its opposition has filed the affidavit of Osea Vuniyayawa sworn on 1^st August, 2023.
   

BACKGROUND INFORMATION

3. In the substantive file the applicant faces the following allegations:

a) Three counts of rape;

b) One count of sexual assault;

c) One count of assault causing actual bodily harm; and

d) One count of breach of domestic violence restraining order.

4. The complainant is the defacto partner of the applicant. This is the second application for bail pending trial the first application was refused on 22^nd March, 2023. The applicant in his affidavit in support deposed that there has been a change in circumstances since his last bail application. He has now instructed a new counsel to represent him in his bail application and he can better prepare his defence whilst on bail. He is also prepared to surrender his travel documents as part of his bail conditions.
   
5. The applicant further states that strict bail conditions can be imposed he will live in Namoli village away from the complainant who lives in Drasa, Lautoka. The applicant has two proposed sureties who are willing to enter into a bond and sign an assurance on his behalf as well. The applicant promises to abide by all his bail conditions.
   

APPLICANT’S SUBMISSIONS

6. The applicant’s counsel submitted that the presumption of innocence is still in favour of the applicant and he is able to provide two sureties as part of his bail bond.
   
7. Counsel basically urged upon the court to consider the applicant’s position in the family as the sole breadwinner and his duty to provide for the family. The applicant knows the risk of breaching his bail conditions and he is willing to abide by any bail conditions that may be imposed by this court should bail be granted. In respect of the change in circumstances the counsel stated that the complainant (applicant’s defacto partner) came to visit the applicant at the Lautoka police cell and Remand centre.
   

RESPONDENT’S SUBMISSIONS

8. The state counsel submitted that the applicant has failed to disclose any exceptional, abnormal or unusual circumstances that would justify the granting of bail. Counsel pointed out that there was no change in circumstances put forward by the applicant, in his affidavit the applicant has stated that he has engaged a new counsel for his bail application and he can better prepare his defence whilst he is on bail. Counsel further stated that the reason for change in circumstances given by applicant’s counsel in his submissions is that the complainant has come to visit the applicant at the police cell and the remand centre which is different to what is sworn in the affidavit of the applicant.
   

LAW

9. Section 14 of the Bail Act provides for numerous applications for bail provided they are not frivolous or vexatious. Furthermore section 14(3) provides that a court may refuse to entertain an application for bail if it is satisfied that the application is frivolous or vexatious.
   
10. The statutory test for a renewed or subsequent application for bail is whether there are special facts or circumstances to consider before releasing the applicant on bail. This test is mentioned in section 30 (7) of the Bail Act which states:
    

“A court which has the power to review a bail determination, or to hear a fresh application under section 14(1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of a fresh application, refuse to hear the review or application.”

11. His Lordship Goundar J. has clearly stated the above test in the case of Justin Ho v State [2019] FJHC 820, HAM 146.2.19 (23 August 2019) at paragraph 8 that:
    

“The Bail Act has not defined the phrase ‘special facts or circumstances’ but has left it to the courts to decide on case by case basis. The word ‘special’ has been given the meaning exceptional or unusual in a number of cases. For the facts to be special they must be “peculiar to the particular case which set it apart from other cases” (Lyon v Wilcoz [1994] 3 NZLR 422, 431 (CA), following the Full Court in Re M [1993] NZFLR 74). For circumstances to be special they must be exceptional, abnormal or unusual (Crabtree v Hinchliffe (Inspector of Taxes) [1971] 3 All ER 967.976 (Lord Reid), 983 (Viscount Dilhorne)).”

DETERMINATION

12. At the outset I would like to state that in this second application the applicant deposed that since the refusal of his first bail application there has been a change in circumstances. Unfortunately counsel did not explicitly inform the court about the change in circumstances.
    
13. The applicant in his affidavit at paragraph 5 of his affidavit in support stated:

I can better prepare for my defence outside rather than been on remand.

Furthermore, in his submissions (both written and oral) the applicant’s counsel stated that the complainant who is the defacto partner of the applicant had come to visit the applicant at the police cell and the remand centre. This is not disposed in the affidavit of the applicant hence will be disregarded.

14. From experience the remand centre has provided facilities to counsel and inmates in the past and continues to do so for trial preparation, instructions taking and so on there is no rationality behind the contention that the applicant can better prepare for his defence whilst on bail.
    
15. Moving on in his supplementary affidavit the applicant deposed that the DVRO orders were not served and explained to him by any police officer. When he went to the Magistrate’s Court the court clerk had told him of the DVRO application by the complainant but the clerk did not fully explain the effect and consequences and the applicant did not sign any documents that such orders were made against him.
    
16. It is noted that the applicant is charged with one count of breach of DVRO hence the facts deposed by the applicant in his supplementary affidavit is irrelevant to his bail application but is a trial issue. The supplementary affidavit is disregarded in totality.
    
17. I would like to reiterate the comments made by this court in Frederick Epeli vs. The State, HAM 167 of 2019 (26 September, 2019) at paragraph 15:

Before going any further it is important to have a look at the wordings of section 30 (7) of the Bail Act. The phrases “special facts” or “circumstances” in the context of this section places the onus on the applicant to satisfy the court that the change in circumstances are exceptional, abnormal or unusual so that the court is justified in reviewing the refusal or consider favorably the making of a fresh application.

CONCLUSION

18. After considering the evidence and the submissions made, the change in circumstances put forward by the applicant are not exceptional to enable this court to grant bail to the applicant. The applicant has failed to satisfy the test under section 30(7) of the Bail Act.
    
19. This second application for bail is refused due to lack of merits. The order for speedy trial in the substantive matter as ordered in the first bail application is maintained and counsel are once again reminded that a trial date will be assigned as soon as possible.
    
20. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma
Judge

At Lautoka
11 August, 2023

Solicitors
Messrs Pillai Naidu & Associates, Nadi for the Applicant.
Office of the Director of Public Prosecutions for the Respondent.